Facts
Richard Gookin was the owner of Dick’s Barber and Style located at the Appleridge Shopping Center in Jackson, Mississippi. Mr. Gookin testified that a young man entered his barber shop with a firearm. It was later asserted by police officers that this young man was Stanley “Joshua” McNeil. Gookin explained that at the time Joshua entered the shop he had panty hose on his head and was wearing dark clothes. Joshua was wearing a shirt with a hood on it and had the hood pulled over his head.
Joshua pointed the firearm at Mr. Gookin and asked for his billfold. Mr. Gookin told him to leave the barber shop. Mr. Gookin refused to give Joshua his billfold. Although the sequence of these events are somewhat unclear, it is clear that Joshua hit Mr. Gookin on his head and face and knocked him to the ground. Thereafter, Joshua shot the gun which struck a patron named Mr. Spille in the leg. Subsequently, the firearm jammed. Once Mr. Gookin was on the ground, Joshua reached in his pocket and took his wallet and exited the barber shop.
Mr. Gookin estimated that at the time Joshua took his wallet there was approximately $185 to $250 in the wallet, as well as such items as his driver’s license, credit cards, and photographs. Mr. Spille and Ms. Smart, a hair stylist at the barber shop, were in the barber shop at the time of the robbery. Their testimony reiterated the testimony that had been given by Mr. Gookin.
Officer Tamara Milliken with the City of Jackson Police Department explained that she was made aware of the armed robbery at the barber shop during roll call at the police station. It was at this time that she received a description of what the assailant was wearing. Later that same day, Milliken was called upon to assist in executing an arrest warrant for Samuel McNeil, Sr., the father of Joshua McNeil and Samuel Nicholas McNeil.
The arrest warrant stated that McNeil, Sr. resided at 1079 McDowell Road which was also the residence of Joshua and his brother Nicholas. Accordingly, several police officers arrived at this address to execute the arrest warrant. Upon the police officers’ arrival, they first encountered Nicholas. The police officers explained to him that they were there to execute an arrest warrant for his father, McNeil, Sr. At this time, they asked Nicholas if anyone was at home and he replied that no one was at home.
Nonetheless, the police officers continued to talk with Nicholas. While having a discussion with Nicholas, they heard noises coming from inside the house. Thereafter, Nicholas gave the police officers permission to go inside the house.
While clearing the house, the police officers discovered Joshua in the bathroom. While Officers Sansom and Camel were talking with Joshua, Officer Milliken went to clear the back bedrooms. Once inside Joshua’s room Milliken saw a hooded black zip-up jacket and black pants. Milliken felt the jacket and pants and noted that they were damp.
Milliken stated that she felt the pants because they matched the description of the suspect in the robbery of the barber shop which occurred approximately an hour and a half earlier. Milliken continued the search and went to clear Nicholas’s room. While in Nicholas’s room Milliken searched the closet to see if there might be someone hiding inside. She discovered no one.
However, when she was exiting the room Milliken saw the butt of a firearm and a wallet between a speaker and the wall. Milliken explained that upon examination of the firearm she noticed that it was an automatic weapon and it had a stove pipe casing. This meant the casing had flipped and stuck in the firearm and another bullet could not be fired. The wallet contained Mr. Gookin’s driver’s license. The wallet also contained forty-two dollars. Once Officers Sansom and Camel had Joshua out of the bathroom, Milliken cleared it.
Milliken searched behind the shower curtain and found no one. While clearing the bathroom, Milliken discovered $181 on the floor near a laundry hamper. Officer Sansom added to the testimony of Officer Milliken by describing the confrontation that occurred in the bathroom with Joshua.
At trial, Nicholas testified that Joshua had brought the gun and wallet home, and Nicholas had hidden it. However, Nicholas contradicted Milliken’s statement regarding the location of the firearm and wallet. Nicholas stated that the firearm and walllet were under a dresser and not in plain view. Additionally, Nicholas stated that Joshua was wearing a white tank top and some blue jeans when he gave him the firearm and wallet.
Joshua testified on his own behalf and asserted that he found the firearm and wallet on a lawn when he was going to see his friend Bobbie. Joshua denied committing the crime.
Joshua McNeil was convicted of armed robbery and aggravated assault and sentenced to 25 years. On appeal, he argued the search of the home was improper. MCOA affirmed.
Analysis
A. Protective sweep
In Maryland v. Buie, 494 U.S. 325 (1990), the United States Supreme Court addressed the legality of a protective sweep. Police officers had an arrest warrant for Buie who was believed to have been involved in a crime. While arresting Buie the police officers performed a protective sweep in conjunction with the arrest which revealed incriminating evidence.
The police officers went to Buie’s house and arrested him. In conjunction with the arrest, a search of the basement was also conducted. A red running suit which fit the description of what one of the suspects was wearing was found in plain view by the police officer. The U.S. Supreme Court held that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched (in other words, where a person could be found).
Beyond that, however, the court held that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.
We are aware that in the case at bar, unlike in Buie, the arrest warrant was not for Joshua but was for his father; nevertheless, we find this of no consequence. On the day in question, the officer was told that McNeil, Sr. was not at the house. In fact, Nicholas, Joshua’s brother, had told the police officers that no one was in the house. Nevertheless, the officers heard noises coming from inside the house.
Nicholas gave the police officers permission to search the house. Additionally, due to the possession of the arrest warrant and past experience where McNeil Sr. hid from them during an arrest warrant for him, the police officers had a right to believe that McNeil, Sr. might be in the house. Based on the arrest warrant, they had a right to enter the house. Once in the house, the officers were justified in conducting a protective sweep for their safety.
B. Plain view
The testimony revealed that it was while the police officers were conducting the sweep that they found the items in plain view. It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. However, the police officer is required to have probable cause when seizing the items.
In Godbold, the MSC acknowledged that it has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence. There was sufficient evidence presented by the police officers that the items seized were in plain view when found.
At the conclusion of the hearing for Joshua’s motion to suppress the trial judge ruled as follows:
The court finds that there was probable cause for the search after the officers arrived at the premises of 1079 McDowell Road. The conduct, erratic, nervous and suspicious behavior of Joshua McNeil warranted the search, in addition to his lunging for the bed, and that the search normally would have been one performed by the officers in a sweep to determine the safety of their presence in the residence. As such, the court is going to deny the motion to suppress the evidence in this case. That evidence will be like other evidence, available to be presented at trial, and the court will determine its admissibility at that time.
It is apparent from the case law that the seizure was lawful. Additionally, the facts presented and considered by the trial judge in her ruling were based on substantial credible evidence. Accordingly, this issue is without merit.